I.
Overview
§3.1
This and the next chapter answer the practical question of when the government and its employees may be held liable under the current state of the law. This chapter discusses the exceptions to governmental immunity that apply to governmental agencies, and chapter 4 discusses individual liability. These are the legal issues most commonly faced in personal injury cases against governmental defendants.
Unlike with private employers, governmental agencies are generally not vicariously liable for the conduct of their employees. As the Michigan Supreme Court stated in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 622, 363 NW2d 641 (1984), “[t]he ‘motor vehicle’ exception … is the only instance where a governmental agency is explicitly held vicariously liable for the negligent actions of its officers, employees, and agents.” The opinion further stated that “courts must be careful not to destroy an agency’s immunity by indiscriminately imposing vicarious liability whenever individual officers, employees, and agents are held personally liable for their torts.” Id. at 623. Thus, “[a] governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within a statutory exception.” Id. at 625.
The meaning of the term governmental function has proven to be very broad following the Ross decision and the subsequent amendments to the Governmental Tort Liability Act (GTLA) in 1986. See chapter 2. Thus, while Ross provides that there could be instances in which an agency is vicariously liable for the nongovernmental conduct of its employees, in practice such scenarios are virtually nonexistent. As the court of appeals has stated, a governmental employer is not vicariously liable for the gross negligence of its employees (see Yoches v City of Dearborn, 320 Mich App 461, 476–478, 904 NW2d 887 (2017)) and is not liable for the intentional torts of its employees (see Lowery v Department of Corr, 146 Mich App 342, 357, 380 NW2d 99 (1985)). Instead, as the court of appeals demonstrated in Yoches, to maintain a cause of action against a governmental agency under Michigan law, one must generally proceed under one of the statutory exceptions within the GTLA. If no such exception exists, the plaintiff is limited to bringing a claim against the individual employee only.
In Mack v City of Detroit, 467 Mich 186, 649 NW2d 47 (2002), the supreme court (overruling McCummings v Hurley Med Ctr, 433 Mich 404, 410–411, 446 NW2d 114 (1989)) concluded that when it comes to governmental agencies, governmental immunity is a “characteristic” of government. As a result, a governmental defendant need not plead immunity as an affirmative defense. Instead, the onus is on the plaintiff to plead their case in avoidance of immunity. Thus, a plaintiff is obligated in the complaint to set forth facts that, when accepted as true, demonstrate that the governmental defendant may be held liable under one of the various exceptions detailed below. The same is not true for causes of action against individual governmental employees, as is discussed in chapter 4.
Although this book is meant to be a practical guide and not a historical treatise, it is useful to understand the reasoning behind this pleading issue. As the supreme court acknowledged in Mack, while governmental immunity may have initially been a product of the common law, it was eventually codified by the legislature. For some, that could be taken as an indication that governmental immunity currently exists by way of legislative action and nothing else. The Mack court addressed that notion, stating thatit did not take a legislative decree to create governmental immunity, but a legislative act to preserve the doctrine that this Court had historically recognized as a characteristic of government. The McCummings suggestion that governmental immunity could not be a characteristic of government because it was created by legislation misapprehends the history of the Court’s actions and the legislative response. We believe that once the sequence of the judicial and legislative events is grasped, the analytical flaw at the root of McCummings is apparent.
Mack, 467 Mich at 202.
Clearly, the question of why the government is immune from tort liability remains an area of disagreement. And the answer to that question has practical impacts on litigation. Although the majority in Mack held that immunity was a “characteristic” of government, Justices Cavanagh and Kelly expressly disagreed with that conclusion, while Justice Weaver found that the question was not properly before the court and had not been adequately addressed by the parties. Justice Kelly later reiterated her disagreement with Mack in her dissenting opinion in Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 417, 716 NW2d 236 (2006).
Thus, while Michigan courts have frequently described immunity as being a characteristic of government, some find the reasoning behind that description to be unpersuasive. And while immunity was recognized as being inherent to the state from the earliest days of the Michigan Supreme Court, the same cannot be said of local units of government. See chapter 2.